tv CNN Newsroom With Poppy Harlow CNN February 13, 2016 2:00pm-3:01pm PST
the state with a near perfect record for picking the republican party's eventual nominee. there's a major debate tonight, the stakes could not be higher. just six republican candidates on stage with donald trump and ted cruz at the center of what is sure to be a political slug fest. on that, and one that will drag out for another seven days until south carolina voters go to the polls. as one cnn contributor put it, this is southern charm with elbows. it is the showdown in south carolina tonight's gop debate coming exactly a week before those south carolina primary voters will make their choice. cnn political reporter sarah murray is with us live from greenville, south carolina. senior political editor for the daily beast, jacqui joins me as well. let me begin with you, sarah. the feud between donald trumpes. you've got trump tweeting yesterday he may have to sue ted cruz for where he is born. you've got ted cruz calling
trump's campaign sleazy. but interestingly we haven't seen them necessarily duke it out on the debate stage. do you think that changes tonight? >> well, like you were just saying, south carolina is known for dirty politics for tough politics. i think we're already see that play out between donald trump and ted cruz. in the last debate ted cruz would not take donald trump on on stage. and it will be interesting to see if that changes tonight because this is the state where ted cruz is trying to prove that he can win in places beyond just iowa. and there are plenty of evangelicals here in south carolina to help him do that. but in order to do that he does have to get through trump. trump has led in the latest polls here for quite a while. and i can tell you when trump has events in south carolina they are big. they are loud. and there are people who have driven hours to see the billionaire businessman. so i think if ted cruz doesn't take donald trump on stage tonight that would potentially be a big missed opportunity for him. >> and, also, look, marco rubio is no question going to be in the spotlight tonight after that
what he admits was a poor performance in the last debate. he says that's part of why he didn't to as well as he would have liked in new hampshire. you didn't have chris christie though have the stage tonight going after him. can rubio shake off what happened in the past debate? >> well, that remains to be seen. but, yeah, chris christie surely threw him off his game and strategy. remember, going into iowa, they had a three, two, one strategy. come in third in iowa, second in new hampshire, and come in first in south carolina. and you know, he's thrown off his rhythm here. now, he's done his best to sort of try to kick the robot moniker that chris christie placed on him. but this debate is a big moment for him because he has a lot to lose. >> and to you, sara, any insight from his camp into how he may be doing that? what he has to be really careful of, right, not repeating the same line over and over. >> right. and his campaign is being very tight lipped about how they're
prepash for this debate but it's interesting if you look over the few days since the new hampshire primary rl marco rubio has really changed his approach. he's spent a lot more time talking to reporters. he is a little bit more off the cuff in his events. he's trying to show a looser side of marco rubio on the trail. and i have to say, poppy, this is what makes places like new hampshire, early states really great candidates, is mixing it up with voter, mixing it up with reporters. so it's possible that this entire week has been preparation for a looser and more active and responsive marco rubio who is ready to take a punch and maybe throw a punch rather than just throw the talking point. >> i think we've seen a shift in donald trump's tone in the last week. he keeps emphasizing i'm a nice guy. his campaign manager coming out and saying this is going to be a, quote, positive campaign. he faces steep competition from ted cruz in south carolina especially with that evangelical vote and cruz has pointed to trump and said trump is rupping
a, quote -- has a, quote, pattern of sleaze. where do those -- where does that tit for tat go tonight? >> i think it continues. i mean, even though donald trump says that he is being a nice guy, he still threatened to sue ted cruz and repeated a lot of nasty things about him. so you have to imagine that cruz is going to try to go after trump and get under his skin because that's when trump looks bad, right? when he looks irritated, when he looks like he can't really handle the argument that is being posed to him. that's what i would imagine ted cruz is going to try to do tonight. >> jeb bush, sara, jeb bush is bringing in his brother for the first time on monday to campaign with him in the days leading up to the primary. julian presidential historian told me last hour that is a risky move and a move that looks desperate despite the former president's popularity in the state, you've also got the republicans and other candidates who will bring up, you know, the iraq war. trump already has in one of his
tweets calling it a week weak move. a to me about what south carolina voters are saying about seeing the former president come on monday. >> well, this is just such a tough line for jeb bush to walk because, you're right, there is very deep affection for the bushes here in south carolina. and this is a national security state so there is an active debate about the iraq war and whether having george w. will hurt him or help him. the reality about jeb bush is when you talk to voter, even if they like the bush family and voted for previous bushes there is a certain sense of fatigue there and applies to jeb. when you look at his campaign here he does need to have a strong debate tonight but also a strong finish here. he is hope that he can get to florida, that he can beat out marco rubio there and then win on saying i have the best organization, best prepared to compete in some of these later states. it's an up hill battle for him. reality is his super pac is spending money on south carolina already and so far that's not boosting his numbers very much.
>> thank you very much. i know you will be watching. we will be watching. we have special post debate coverage tonight right after the republican debate hosted by our very owner written burnett and best political team in television immediately after the debate only right here. you can also hear how the candidates are reacting, how they think they did tomorrow morning. jeb bush and marco rubio will both be on "state of the union with jake tapper" at 9:00 a.m. eastern right here on cnn. we got to take a quick break. i'll be right back. one crest 3d white smile...
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according to sources, the 79-year-old associate justice was found dead this morning on the property of a luxury resort ranch in texas. those sources tell us at cnn that it appears that justice scalia died of natural causes and at this point there is no foul play expected. supreme court justice antonin scalia has died at the age of 79. our jeffrey to be toobin is on phone with me, you are the scholar report, author of the book "the nine," you know this man, the history, his life, his legacy inside out. your thoughts. >> antonin scalia is one of the handful of most influential supreme court justices in history. this is a man who left a huge impact on american law. now, there have been 115, i believe, supreme court justice,
but only a handful have enormous personal legacies. and justice scalia is in that category. he has been the leader of the conservative wing on the court since he was appointed by president reagan in 1986. and his departure leaves a huge political fight in the offing because this is a court with five republican appointees, four democratic appointees. president obama will have the opportunity to nominate someone. and there will be one of the great battles in united states senate history over whether president obama's nominee even gets a vote because of the senate republicans recognizing how important it is to maintain a conservative majority on the court. president obama is only president for another ten months. and the question will be whether
president obama's nominee, who i expect will come quickly, will get a vote at all in the remaining months of his presidency. >> and, jeffrey, let's talk through some of the cases that stand out to you most that he wrote. you know, wrote the leading opinion, decision on. what stands out to you most when you think of the history of the cases that he heard. >> famous and influential opinion that justice scalia wrote involved the second amendment, the right to bear arms. for over 100 years the supreme court had said that the second amendment which refers both to a well regulated militia and a right to bear arms only applied to militias. but in 2008 in a case called peller justice scalia wrote the opinion that said, individuals have a second amendment right to bear handguns for their own personal protection.
and that is an enormously important opinion. he, of course, was in the majority in bush v. gore in 2000 which essentially made president bush president. he has been a stallworth opponent of abortion rights, voted against roe vs. wade at every opportunity. he voted against gay rights at every opportunity. he wrote a scathing dissenting opinion in the the case that gave gay people the right to marry in all 50 states. there is almost no issue, except for the first amendment, freedom of speech, where he has not been a down the line conservative. >> to sum up his legacy, a hard thing to do for a man with this history, what would you say, jeffrey? >> i would say that the
conservative idea that the constitution should be interpreted as the framers understood it in the late 18th century, the idea known as originalism, he was the leading advocate, the leading scholar, the leading -- the person who brought that idea into the mainstream. and it is now a very much ascended view of the constitution. that he is the person most associated with that. he had enormous success, not total success, but in the supreme court is not a fully conservative institution, but he is the -- he was the leading conservative on the court since his appointment in 1986 by president reagan and he leaves an enormous, enormous legacy in not just american law but american society. >> and, jeffrey, i think a big question now becomes, what
happens to those cases that are presently before the court that have been argued in front of justice scalia? what happens to those cases right now? >> well, those cases will be decided. if they can be. if they are -- if they have a majority of five votes, the cases will be handed down with eight justices. if there are 4-4 ties what happens in supreme court litigation is those cases become -- the lower court decision becomes affirmed but they are not supreme court precedent. it's called of fimaffirmed by a equality divided court. there's not that many 5-4 cases especially early in the term and this is still early in the term. but the -- the real issue is what happens now in the senate
whoo and who does president obama nominate and does a person get a vote in the senate. i think this is going to be -- it's going to transform the presidential campaign and it is really going to -- may well dominate much of politics for the next -- until the election in november. >> and now also the question becomes when you look, jeffrey, at the history of the justices on the court right now, how does he rank in terms of those justices? >> in the top dozen. this is an immensely, immensely influential justice. he is going to rank up there with oliver wendell holmes, with william brennan, with earl warren in terms of justices who didn't just cast vote as one of nine but who really shaped the legal thinking of their era.
he is someone who, you know, who took office at a time when justice brennan who was the great liberal who was appointed by president eisenhower, was still a major force on the court in the mid 1980s. and scalia led a counter revolution. there's no other way to describe it. and that counter revolution was largely but not completely successful. when you look at how the court has cut back on abortion rights, how it has cut back on the use of affirmative action, decisions like the -- of bush v. gore and the end of the voting rights act or the almost the end of the voting rights act, those are all decisions that have justice scalia's handprint all over
them. and i think it is just a huge development that he's leaving the court but he also leaves behind a vast, vast legacy. >> jeffrey, let's talk about what reagan in '86, right, when he was nominated and then confirmed with the court, what reagan was hoping he would be in terms of a justice over the decades and what he actually became. do you think he lived up to what then president reagan thought he would accomplish? >> he more than lived up to president reagan's hopes for him. remember, back in 1986 justice scalia was the first italian-american ever to be on the united states supreme court. he's of course since then followed by soamuel alito, also
an italian-american. so he has not only been a -- an important conservative voice on the court, he's been a public figure. you know, unlike many justices on the court, justice scalia is a -- is someone who has been outspoken off the bench as well as on the bench. he has been a figure of some controversy. some people may remember during the bush administration he went on a now famous duck hunting trip with vice president cheney and then later declined to recuse himself involving a case where some records were sought from vice president cheney's official activities. and he wrote a very lengthy and frankly very amusing explanation of why he didn't recuse himself
in that case. but that was typical of him. i mean, he was -- he was outspok outspok outspoken. he was very funny. he was unapologetic in his conservative views. he was a strong, strong supporter of the death penalty. another area where he left an important legacy on the court. so, you know, people who have only heard of a handful of supreme court justices have usually heard of justice scalia because he has been such a big public figure as well as someone who was just, you know, all -- no such thing as an unimportant supreme court justice. there are only nine of them. but some are more important than others and justice scalia was at the very top rank. >> jeffrey, stay with me because i have another question for you. i do want to read our viewers a statement in full we just received from the governor of texas, governor abbott, on the passing of justice scalia, again, a man who served 30 years
in the high court on the bench who died during his sleep during a visit to texas. governor abbott writing, justice antonin scalia was a man of god, unwaving defender of the written sconce constitution and rule of law, solid rock who turned away many attempts to depart of the distortion of the constitution. his fierce loyalty to the constitution set an unmatched example not just for judges and lawyers but for all americans. we mourn his passing. we pray that his successor on the supreme court will take his place as a champion for the written constitution and the rule of law. cecelia and i extend our deepest condolences to his family and i will keep them in our thoughts and prayers. stay with me. breaking news in to cnn. justice antonin scalia has died during his sleep on a visit to texas. he served the high court for the past 30 years after being
appointed, nominated, and then appointed by president ronald reagan in 1986. here's more on his life and his legacy from our joe johns. >> the first italian-american to sit on the nation's highest court, conservative in thought but not in personality. >> justice scalia has a pugnacious personality and even in his early years of the court, that came out both in oral argument where he was the most aggressive questioner and behind the scenes where the memos that he wrote were called ninograms inside the court had a real galvanizing effect on the debate among the justices. >> reporter: the jaunty injurist was able to light up or i guess night a room with his often brash demeanor and wicked sense of humor. grounded, say many colleagues, in a profound respect for american law and its constitutional traditions. >> feisty, he can be by lidge
rent, he's obviously very candid about how he feels about things. loves to call it as he sees it. completely not pc. in fact, prides himself in not being pc on the bench, in court. >> i'm italian from queens. >> reporter: a sharp mind combine with a sharpen allowed scalia to make his point both to the pleasure and disappointment of his colleagues and the public. >> he's very good, especially with audiences not predisposed to like him. incredibly disarming and charming in his own way. >> reporter: antonin glegry scalia was raised in new york city, only chald child of a sis sillian born, love of words and debate. >> i was something of a greasy grind. i have to say. i studied real hard. >> reporter: he was a top student at public and private catholic schools in the city. here he is leading his high school band in the fifth avenue
parade in 1950. scalia's interest in law began in college and so, too, an interest in maureen mccarthy with whom he later married and had nine children. his exuberant embrace of con serve tichl attracted the attention of republicans and president reagan ultimately named the 50-year-old federal judge to the high court in 1986. there he developed reputation as reliable conservative. in his own style helped liven the public face of the high court. >> some of the other justices, including the justices who were already on the court and had been on the court for a while, were kind of, well, if the new guy gets to ask all of these questions i'm going to sort of step up and ask questions, too. >> reporter: on abortion, the death penalty, affirmative action, homosexual right, scalia clashed early and often with more moderate or left-leaning bench mates. >> at one extreme he would alienate some of his colleagues. if he was trying to get anybody to sign on opinion it was harder when he would use more combative
language. but, you know, as much as they would say, you know, i'd like to strangle nino, he was still theres in many way railroads those dissents hoped him hone a creative some said cruel streak in his writings becoming a master stylist. he once referred to the junior varsity congress, he quoted cole porter, shakespeare and sesame street strong. in a closely divided abortion case he slammed justice sandra day o'connor's views. websites and tribute but controversy, too. a hunting trip with vice president cheney at the same time the court was considering a lawsuit against the number two over access to privileged documents. a sis sillian gesture some interpreted as obscene and captured by a boston newspaper. he call it dismissive in nature. and this on the war on terror. >> war is war and it has never
been the case that went you capture a combatant you have to give him a jury trial in your civil courts. it's a crazy idea to me. >> to thin own them be true. >> justice scalia a man both respected and dismissed, feared and celebrated, combining equal amounts of personal levity and judicial heft. >> be remembered in many ways, certainly as this larger than life figure, larger than bench figure, someone who embraced both the law and a life beyond the court. >> he will go down as one of the great justices in the history of the supreme court. i think that his -- his party of thought, wit, writing, you know, will be very difficult to match. >> reporter: a judge who combined street smarts with a well calculated conservative view of the law and its limits on society. >> i'm not driven.
i enjoy what i'm doing. as soon as i know longer enjoy it, i am out of there. >> again, a look at the life and the legacy of justice antonin scalia who has died at the age of 79 while on holiday in texas. this news just in to cnn that justice scalia has died at the age of 79. a sitting justice on the u.s. supreme court known as our jeffrey toobin has said, to be among the most, the most conservative, the first american-italian appointed to the court. we have new information coming in from our justice correspondent evan perez. evan, what are you learning? >> poppy, we are told now on the record from the u.s. marshal service that they are on the scene there in west texas, at the creek ranch where justice scalia passed away. it is believed he passed away of natural causes early this
morning. we have a few more details of what happened. apparently last night he was at the ranch with a group for a hunting trip. and he was complaining of not feeling well so he went to bed. early this morning the rest of his group got up and he did not. he did not get up for breakfast. so the rest of the group left the ranch to go on their way for their day. and the justice didn't get up. later on some time thereafter someone at the ranch decided to go check on him and they found him unresponsive. he had passed away. again, apparently of natural causes, according to the u.s. marshal's service. they're on scene there trying to make arrangements to have obviously the family, you know located way in west texas in the big band area. one of the most beautiful parts of the country. very popular for people to go out there on hunting trips. that's what the justice was doing on this trip. >> all right, evan perez, our justice correspondent with those
details from washington for us. evan, as you find out more, please bring them to us. i do want to go back to our jeffrey toobin, cnn senior legal analyst and expert on the supreme court. let's talk about his relationship with the other justice tons court. specifically i'm interested in his relationship with ruth bader ginsberg. obviously opponent to the left. jeffrey, toobin, are you with me? >> i'm sorry. >> i'm just very interested ins as we look at these imams of the two of them, justice ginsberg and antonin scalia sitting down for a conversation on stage, i'm interested in justice scalia's relationship with the other relationships on the court and ruth bader ginsberg, his ideological opponent on the left. >> they were friends for many years. they had a lot in common.
other than their politic which had nothing in common. they were both new yorkers. justice scalia from queens. ruth gens ginsberg is from brooklyn. they were both on the d.c. circuit before they were on the supreme court together. they spent new year's eve together all the time. through many, many years. justice ginberg's late husband, marty ginsberg, with a famous in washington gourmet chef and antonin scalia as he would happily acknowledge was a great gourmet eater. he very much enjoyed eating marty ginberg's cooking. justice scalia is, was, sorry -- hard to speak about him in the past tense, because very funny person. and justice ginsberg is someone who appreciates funny men. and they were friends for a long
time. i think they enjoyed the public bewilderment at the fact that they were friends. they disagreed on every important issue, whether it was gay rights, abortion, death penalty, affirmative action, free speech. but they were not disagreeable with each other. and it was -- it was a nice lesson for all of washington for a long time. >> what about the possible replacements? jeffrey, you were speaking about that earlier, just how hard it will be to get a nominee by president obama through the senate. what names are we looking at, talking about? >> i would keep an eye on one name above all, judge shree, indian-american, 48 years old. a pointed by president obama to the d.c. circuit which is where justice scalia came from and four other justices came from. widely believed to be the second most important court in the country.
and very importantly justice -- judge vausen was confirmed unanimously by the united states senate just a couple of years ago during president obama's -- towards the end of his first term, i believe. and he is someone -- if anyone could get through the senate he could get through the senate. but certainly you are going to see many republican senators saying this is a seat that should be -- that should go to the next president, that the next president should fill this seat and they will do everything in their power to stop a vote. now, this is a senate in republican hands. so mitch mcconnell, majority leader, and charles grassley, who is the chairman of the judiciary committee, if they want, they can stop any vote from taking place. there will certainly be political heat on the court -- on the senate to take a vote. but this i suspect will dominate
the life of the senate for the next few months and it will certainly dominate or play a very significant role in the presidential campaign that's unfolding right now. >> let me read you this. when you talk about just the political battle that will ensue after this, jeffrey, the communications director for senator mike lee, republican of utah, sits on the senate judiciary commitity. what is less than zero? the chances of obama successfully appointing a supreme court justice to replace scalia and then we have senator ted cruz running for president just tweeting, justice scalia was an american hero. we owe it to him and the nation for the senate to ensure that the next president names his replacement. your thought, jeffrey. >> well, this is something you're going to hear a lot of. and the great, great significance of the senate going
republican in the mid-term elections in 2014 is that the senate can stop a vote from taking place over the next ten months. that is -- and certainly mike lee, ted cruz, who are very passionately interested in the subject of the supreme court, will do their best to stop the senate from taking action. you know, it is worth remembering, also, that it is only february. and president obama is going to be president for another ten months. that's practically a quarter of his term. if there's no vote on a successor, that will leave the supreme court shorthanded for over a year because a new president is not coming in until january. certainly it would take some time for a new president to nominate and confirm someone. i don't believe there's ever been a vacancy that's lasted for that long without -- without a vote in the senate.
so there will be considerable political heat on the senate to act on an obama nominee. now, they may simply say, forget it. but that's not the whole story. >> jeffrey, but take me back to 1986 -- 1968, excuse me, when the senate gop ran out the clock on lbj's nomination onfortis to be chief justice. >> that's right. but the court was not shorthanded during that time. earl warren had announced his intention to step down but he had not actually stepped down. there were always nine justices on the court. this is a very different situation sadly because justice scalia has died. but you will certainly hear republicans say that there is nothing stopping the court from acting with eight justices. most cases are not 5-4. most cases are resolved with a substantial majority in the
court. so it's not a -- they will say it's not an urgent situation. but democrats will say and i think a lot of people will say, look, you know, we have one president at time. and he's still the president. he gets to nominate people. and that person deserves a vote. obviously a great deal will depend on who the person is that president obama nominates. but i tell you, it is very -- i suspect many people in the white house will find it very tempting to nominate someone like judge vausen who already received unanimous approval in the senate and their argument will be how could he be unanimously qualified three years ago when you won't even give him a vote now. that will be the argument you will hear. if judge vause season the nominee. >> jeffrey toobin, stay with me because i just received a statement from the supreme court, from chief justice john
roberts of the supreme court. i will read it to you now in full. on behalf of the court and retired justices i am saddened to report that our colleague justice antonin scalia has passed away. he was an extraordinary individual and injurist, admired and admired by his colleagues. passing is a great loss to the court and the country. he so loyally served. he extend our deepest condolences to his wife maureen and his family. again, whether you agreed with him ideologically or not this is a man who served this country and the high court for 30 years. jeffrey, someone as you said was very close friends with ruth bader ginsberg, fellow justice, ideologically opposed to him. when you look at his legacy and the summation of his career, what is the one word that comes to your mind? >> giant. this is a giant of american law. the transformation in constitution allow, the transformation of how judges and
ordinary citizens look at the constitution, you can almost never say there has been someone in american history who has this kind of influence. jeffrey, stay with me. i want to bring in our senior political commentator david gergen who also was adviser to four former presidents. david gergen, to you, david axelrod, the senior political commentator for cnn but also former adviser to president obama calls this a seismic event for the presidential campaigns. >> i think that is, too. i heard what he said and i agree with almost everything. this is going to thrust the future of the court right into the middle of the campaign. and i have no doubt that even as everyone expresses mourning for this man who had such enormous influence but also did serve his country as he saw by his own, enormously well, you're going to
hear tonight in this debate the beginnings of the argument about not only should the person wait and let the next president succeed or, you know, make the choice, but very, very importantly scalia was one of three justices who were going into their 80s during the term of the next president. justice kennedy and justice breyer will also enter their 80s and justice ginsberg is already there. everybody was speculating, could be three, four seats that could open up during the first term of the next president. that's enormously important to the future of the country, certainly to the future of the law, the direction of the law. and so the next -- it's a choice people make about in their election is very much involved not only the economy, not only jobs, not only american security, but who is going to
choose the future direction of the highest court in the land. >> absolutely is. and this is already become political. obviously the breaking news is the very sad death of a 79 yaermd supreme court justice antonin scalia who served on the high court for 30 years after his nomination by then president reagan in 1986. of course, with his passing, everyone will mourn, they are mourning, i just read the statement from the chief justice. but it has become political, david gergen, as we look at live pictures of the supreme court as night falls on our nation's capital. the ud adviser for mike lee, republican from utah who sits on the judiciary committee just tweeted this, what is less than sk zero? how bitter of a fight does h become, david gergen? >> i'm not sure how bitter it will become this year.
because i don't think the president has the votes to move it. conservative -- scalia was so important to the conservatives. he was the anchor for conservatism on the court. he was on the person who was most persuasive. at least four people there who have been there, the stallworth, cone serve tives, if you would. expected him to basically live on for years to come. this is going to be a real shock in the conservative community and they are going to respond by saying, well, we're very polarized country and very divided and rather than the president putting up someone who is going to, you know, rather than putting up someone potentially could make the argument as jeff has and i think he's right about this, someone who has been confirmed unanimously to the court of appeals, you know, why would you object him, the reason you object him is reasons for other than what you why you voted for
him on the court of appeals. and that is he's going to tip the balance of the court. and shouldn't that be decided by a vote of the people rather than by some action in history? and that i think a lot of conservatives are going to argue, look, the president ought to give this time at any event, he shouldn't put up a nomination, you know, he really ought to run a thorough search. and then take his time to assess all of this. and, yes, we're going miss him and court will live on but for the future direction of the country, of the court, then it's important to let the people speak. i don't know which way the argument will cut with the american people. there are argument ogs on both sides but the snats is going to be very divided and as jeffry says the senate happens to be controlled by republicans as a result of the recent elections. >> david, if you were advising your fifth president you've been adviser to four former
presidents, if you were sitting in the oval office this week advising president obama, would you advise him to nominate or to wait? >> i think everyone here needs to act with some deliberation and not rush to the barricades. because the american people deserve better than that. this is a time of mourning. show a little more judgment. wait a little bit and make a decision about what to do. i don't think a president ought to make a decision. let this settle down a little bit and certainly wait a few days. i think i would probably come down on the side of the we have a really strong candidate, unanimously confirmed, we should put that candidate forward and then let the republicans show their stripes and block things and that will re-enforce your argument that their obstructionist and continue care for tradition but they really cared about the court they wouldn't let it go a full year or so with only eight members.
i think that's a political step. i don't think the president would have a realistic chance of getting it done but if you're sitting in the white house you're thinking about the politics of it as well as everything else and you realize you probably don't have the votes but politics said, maybe you ought to help your nominee. and for that reason, i think the president will probably lean toward putting forward a candidate. i would love to hear jeffrey's general view about the politics of this. >> absolutely. let's bring jeff frin to rey to in, expert on the supreme court. david gergen, stay with me as well. jeffrey, for our viewers watching, when you look at a 4-4 decision, okay, does the prior rule -- the ruling of the prior court stand in a 4-4 decision? >> it does. but it does not become supreme court precedent. it only applies to the circuit where the decision has been reached.
just to reflect some of what david was saying. one reason why republicans will be so reluctant to give a vote to any nominee that president obama makes is that this court now has five republican appointees and four democrats. and it is usually -- and in high-profile cases it often splits along that 5-4 action. if president obama successfully nominates someone to the supreme court it will become a 5-4 democratic majority. that could have huge, huge implications for the future of the court. especially since justice kagan are relatively young by supreme court standards. you can have three young democrats along with justice scalia -- justice ginsberg and justice breyer with a progressive majority in the
court. and i find it very hard to believe that republicans will allow that to take place. certainly many republicans will be opposed to it. some republicans, especially if they voted for the same nominee before may allow it but this -- my point is, this is not just any vacancy on the court. this is a vacancy that could tip the balance from a conservative majority to a liberal majority. that makes it that much more significant. >> it abs oolutely does. what will also be significant is what we hear from the white house, the fact that the white house never agreed with scalia or his rulings being such a conservative justice. what they say in this statement will be critical, jeffrey toobin. >> i think the white house will simply say -- express sympathy
and respect for justice scalia. this certainly only tawdry journalists like me will talking about successors at this point. it would certainly behoove the -- the white house to be talking about successors. i can't imagine any statement would be anything other than a statement of sympathy and respect for justice scalia at this point. there will be a respectful silence from the white house for a while, but, believe me, they are already thinking about their strategy. >> david gergen, to you. your thoughts on that. >> i'm sorry? >> david gergen, to you. your thoughts on what we may hear from the white house when we do get a statement from them? >> i agree with jeffrey again. it will be -- they will be very respectful. it just as justice ginsberg has had a friendly relationship and respectful relationship, i think the white house will not be friendly but very respectful and
recognize his importance to the court and also recognize this was a man with a long marriage with nine children who loved life. and i would think that they -- sense of humor, often served him well. you know, it's often like gladiators, at some point you respect what the other person did even though you may totally disagree with them. i think their public position will be that the president has made no decision about how he will proceed and i think their leaked decision, private to the reporters, of course, we ought to fill the seat, of course we're going to have to do this. and i think that's where we will stand for a while until the search becomes a -- i would think they would launch a search of some sort fairly quickly, certainly within three or four weeks. >> and, jeffrey toobin to you. let's just talk in context historically about this.
there has not been a vacancy on the supreme court with the senate and the white house in opposition being controlled by different parties since clarence thomas 25 years ago. >> that is -- makes this challenge for the obama administration much, much harder. also, the difference is the -- it is not just the fact that the president is of the opposite party. we're in the last year of an administration. that was not the case with clarence thomas. he was nominated in 1991 with two years to go in the bush administration. so the option of simply running out the clock did not exist for the democrats when then senator joseph biden was the chairman of the judiciary committee. it is certainly possible to run out the clock for ten months in a way that it's more difficult
to run it out for two years. however, it is also true that the senate is a lot more politically polarized in 2016 than it was in the modern republicans are all gone, perhaps except susan collins of maine. they're all kbon. this is a much more conservative republican majority in the senate who will be that much more reluctant to confirm any nominee to the supreme court, much less one that will shift the balance from 5-4 conservative to 5-4 liberal. >> when you come down to it, what we have shaping up in this election year is an election that will determine control of the white house, control of the senate and criminal of the supreme court. all three branches of government are in play here in this
election. and that makes the election intensely important. and the supreme court is going to become the future. the court is a part of a much larger battle. i think it will be elevated into the conversation of where we're going from here and who should serve as president in the coming years. >> that is a very important point. stay with me. i just got a statement in from former president george w. bush. i will read it to you in full. laura and i mourn the death of supreme court justice antonin scalia. a towering figure, an important judge in the nation's highest court. he brought intellect, good judgment and wit to the burge. he'll be missed az hi colleagues and the country. laura and i send our condolences to was hief maureen and their nine children and the entire scalia family. obviously that is very political in terms of who replace him but
let's talk about the man, whether you agreed with him i'd logically or not, whether you were a fierce opponent of the majority decisions that he wrote or the dissenting opinions that he wrote. a man that is a father, 28 grandchildren and a man who spent 38 years of his life serving our country. >> and he led one of the great american lives. here's a kid who grow up in queens. and i remember he told me once that he did riflery in high school and he used to take his rifle on the subway, which is quite a sight to imagine. you do see many rifles on the new york city subway anymore. it was late in life when he was appointed the justice in charge
of the courts in the south. and he became -- started to be invited to hunting ex. petitions and he became a devoted hunter. really late in life. and i saw he was on hunting trip when he died. and i know from personal experience that means he died doing something he loved because he loved hunting. he even introduced justice kagan who was also a new yorker someone who did not hunt as a kid but someone he brought -- he shared his love of hunting with. this is someone who was a tennis player, he was a hunter. he led a life full of enjoyment and fun and intellectual combat. he never -- he never shied away -- i saw him many times speak in public forums and unlike some supreme court justices, he took questions from anyone, hostile questions, he
was not afraid of defending his views in an unstructured setting. he loved life. and he had a big, big life and a big influence. and there are very few people who claim -- who deserve -- who receive the kind of influence that he did through his long life. >> jeffrey, talk to me about the process now, the way that he is honored, the pomp and circumstance that will follow for a supreme court justice. what happens when they pass away? what kind of funeral will be held for him? will his body lie in state? >> his body will -- this will in part be up to his family. but almost certainly he will lie in state in the great hall of the supreme court. and i have a very vivid memory of standing watching the casket
of william rehnquist who was justice scalia's great friend and ally on the court. and i remember watching justice scalia walking by the casket, tears just flowing down his cheeks. i mean he was someone who was not afraid of expressing emotion. he was someone who was operatic in his life as well as a passion for music. and i remember just being impressed by how open he was in his grief. and i suspect when justice scalia lies in state in the same place, many people will shed the same kind of tears. >> stay with me, jeffrey toobin, david ger again. i want to go to dana bash. your sources are talking to you on the phone about perhaps the next appointment. >> that's right, poppy.
you've heard jeff talking about the fact that we are -- never mind there is an opposition party running capitol hill, especially the senate which has the duty of confirming and approving any supreme court justice, but we are just 11 months short of a new president taking the oath of office. so i've within talking to a senior republican source in the senate who said that it is unlikely at this point for the president to get a nominee through this senate while president obama is still in office. both for logistical challenges, because it takes a long time for the paperwork and everything else but much more importantly because of political challenges. you are already seeing republicans, both on capitol hill and off capitol hill, conservatives saying there is no way they want, in the twilight of president obama's administration, they want him to
be able to pick the next nominee to the supreme court, especially somebody who is going to fill the slot left by antonin scalia, one of the most admired justices by conservatives. so you're already seeing that kind of pressure. i want to emphasize that there is no decision made. obviously this is a surprise. this is not like, as jeffrey was just talking about, usually you have -- at least in recent history you are retirements or at least some expectation that there is a nomination process coming. and this is not one of those situations. so it is absolutely not decided that the republicans who run the senate will not go forward with an obama nominee, but it is looking extremely unlikely again for political reasons and logistical reasons. let's be honest, it's mostly political reasons. >> dana bash, thank you for your reporting. stay with us. we'll get more. i do want to read a statement and some reaction that we're
getting from washington, from the white house. principle deputy press secretary er aeric shuts, the president and the first lady express their condolences to the scalia family. we'll have additional reaction from the president in the white house. additional reaction will come later today. david gergen, to you. your thoughts. >> well i think the white house is handling it just as it should. make the early statement saying that the president sends his deepest condolences. this has caught everybody by surprise. but it's -- i can't emphasize enough. i think that -- going back to jeffrey's point. this is a man that was so full
of life. it was totally unexpected that he would die like this. he was quail hunting yesterday in west texas. that's where a lot of people like, the jim bakers and the dick cheneys and others like to go out there. but to have a man so full of life, to have his life extinguished so quickly and to have him at such a pivotal moment both at the court and in politics, our national politics. i think all of us are thinking, whoa. this is -- david axle rod got it right. it's a seismic event. >> no question about it. justice scalia spoke to new york magazine and they asked him what will be the telltale sign that he will retired, david gergen. and he said one will be that i don't enjoy it as much as i do. i think that's the beginning of the end. and we know he enjoyed it all the way through.
>> he lived life to the hilt. we live near each other in northern virginia and our kids played in the same swimming pool in a small place there. and he was always so convivial. people understood he was a conservative. but people of all stripes enjoyed his company. he was great company. >> david gergen, thank you very much. stay with me. it is 6:00 on the east coast and we have breaking news. very sads breaking news to bring you at the top of the hour. the death of u.s. supreme court justice antonin scalia. according to a government source and a family friend, scalia died in his sleep during a visit to texas. a government official says scalia went to bed last night telling friends he was not feeling well. he did not get up for breakfast, found